January 30, 2006

Hey, did you know there's a border dispute between New Jersey and Delaware? Here's how that's going...

DOVER, Del. -- The U.S. Supreme Court on Monday granted a request by Delaware to appoint a special master in a border dispute with New Jersey, dashing the Garden State's hopes for a quick resolution of the case.

The high court appointed attorney Ralph Lancaster Jr. of Portland, Maine, as special master, granting him broad authority to summon witnesses, issue subpoenas and gather any evidence he deems necessary.

The Supreme Court agreed in November to hear New Jersey's challenge to Delaware's claimed jurisdiction over a section of the Delaware River. Justices met last week to decide whether to schedule oral arguments or to appoint a special master to gather facts in the dispute, which involves New Jersey's effort to help energy giant BP build a liquefied natural gas plant on the New Jersey side of the Delaware River.

"Obviously, this means the case is going to go on longer than we would like, but we are prepared for whatever time it takes to see this case through," said BP spokesman Tom Mueller.

Delaware environmental officials last year rejected a permit application by Crown Landing LLC, a BP subsidiary, to build a 2,000-foot pier that would serve a liquefied natural gas facility proposed for Logan Township, N.J.

Delaware officials said the project represents an offshore bulk product transfer facility and heavy industry, both of which are prohibited under Delaware's coastal zone protection laws.

Under boundary determinations that date to the 17th century, Delaware controls the river up to the mean low-tide mark on the New Jersey shore.

New Jersey officials, who see the proposed LNG terminal as a boost to their state's economy, claim that a 1905 interstate compact gives New Jersey the right to control riparian access and structures on its side of the river, even if they extend across the border.

Collins J. Seitz Jr., a Wilmington attorney who is helping represent Delaware in the dispute, said he was pleased that the Supreme Court wanted to develop a complete record before resolving the case.

"I expect it will take some time to sort out all the historical information that will be presented to the special master," he said.

Peter Aseltine, spokesman for New Jersey's attorney general, said his state is confident in its position.

"Governor Corzine supports this project, which he believes is important for South Jersey's economic development," said Anthony Coley, spokesman for New Jersey Gov. Jon Corzine. "He hopes this matter will be resolved expeditiously."

Lancaster, a Harvard-educated lawyer, said he has not followed the Delaware case, and he did not offer any timeline for how the case might unfold.

Lancaster has served as special master to the Supreme Court twice before. The first case involved a dispute between New Jersey and Nevada in the late 1980s over the disposal of hazardous waste.

The second involved a more recent fight between Virginia and Maryland over Virginia's attempt to place a water intake pipe in the Potomac River. The Supreme Court in 2003 upheld a determination by Lancaster that Virginia could withdraw water from the Potomac to supply fast-growing suburbs around Washington, D.C., without getting permission from Maryland.

Maryland owns the Potomac under a 1632 land grant from King Charles I, but a 1785 compact between the states gave Virginia certain water rights. Maryland argued that its historical control over the riverbed gave it oversight of Virginia's water plans, but a 7-2 majority of the court said the 1785 treaty allows Virginia to make various shoreline improvements and withdraw water.

The fact that Lancaster and the Supreme Court sided with Virginia was not lost on New Jersey Assemblyman John Burzichelli, D-Gloucester, who has engaged in a war of words with his Delaware counterparts over the LNG project.

"While I would not want to prejudge this particular case, there are similarities, and the thrust of New Jersey's legal challenge is very similar to Virginia's case," he said.

Last week, a state House committee in Delaware released a bill authorizing the governor to establish boundary markers and to mobilize the National Guard "to defend against encroachments upon the territory of the State of Delaware."

The bill, which may come up for a House vote Tuesday, was dismissed as "pathetic saber rattling" by Burzichelli, who has joked that he might inquire into the seaworthiness of the retired battleship USS New Jersey, now a floating museum on the Camden waterfront.


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